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Can a Probate Court Waive Posting of a Personal Representative Bond?

| Apr 30, 2021 | Personal Representative, Personal Representative's Bond, Probate |

When a probate estate is opened in Florida, one of the requirements that the probate court can impose at the beginning is that a Personal Representative’s Bond must be posted. Often the requirement for posting the Bond must be satisfied before the Letters of Administration are issued to the Personal Representative. This means that until the Bond is posted, essentially no action can be taken by the Personal Representative.

Florida Statutes Section 733.402 (1) provides as follows:

Unless the bond requirement has been waived by the will or by the court, every fiduciary to whom letters are granted shall execute and file a bond with surety, as defined in s. 45.011, to be approved by the clerk without a service fee. The bond shall be payable to the Governor and the Governor’s successors in office, conditioned on the performance of all duties as personal representative according to law. The bond must be joint and several.

The reason for posting a Bond is to protect in the event the Personal Representative fails to adequately perform his or her duties, thereby resulting in damage to the Estate.. In essence, the Bond is there to assure that the Personal Representative will “faithfully perform its duties according to law.” If the Estate suffers a loss due to the Personal Representative not performing those duties, then a claim can be asserted against the Bond. This can be important since the Personal Representative may not have personal assets from which to satisfy a judgment.

In some cases, the probate court will waive the posting of the Bond. Florida Statutes Section 733.402 (4) provides: “On petition by any interested person or on the court’s own motion, the court may waive the requirement of filing a bond…” In most instances, in order to have the court waive the posting of the Bond, there should be a couple of elements in place. First, if there is a Will, the Will should include a provision saying that no Bond will be required of the Personal Representative. Often, a Will has a provision saying something to this effect: “I direct that no Bond or other security shall be required of my Personal Representative in any jurisdiction for the faithful performance of the duties as Personal Representative of my estate.” If there is no such provision, the court will almost always require the posting of at least a minimal Bond.

Secondly, the court will often require that all of the beneficiaries of the Estate sign a waiver of the Bond. Such a waiver is signed by the beneficiaries at the beginning of the probate. The waiver tells the probate court that the beneficiary is agreeable to waiving the Bond. If all beneficiaries sign a waiver, the probate proceeding can move forward more quickly and with less expense (after all, the premium for the Bond is paid out of assets of the Estate).

In some cases (and with some probate judges), the court requires a Bond even when the Will says none should be required and even when all beneficiaries waive the requirement. In that case, the Personal Representative will have to fill out a Bond application and submit it to a bonding company. The company then issues the Bond which is signed by the Personal Representative and by the probate judge. The estate must then pay the premium for the Bond.

 

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